The American Civil Liberties Union on Monday evening filed a brief opposing a motion by the U.S. Department of Justice to dismiss a lawsuit brought by lawyers representing former U.S. army private Chelsea Manning over her ability to grow her hair as part of her treatment for gender dysphoria.
On Nov. 10, the Department of Justice filed its own brief asking to dismiss Manning’s case, arguing that preventing her from growing out her hair was for her “own good,” as a way to protect her from potential assaults from other inmates over her feminine appearance.
Manning is currently serving a 35-year sentence for releasing more than 700,000 government files containing sensitive information to the online government watchdog site Wikileaks as part of the largest leaks of classified documents in American history. She is housed at the United States Disciplinary Barracks (USDB), a maximum-security facility for men in Leavenworth, Kansas. Due to U.S. military grooming standards, all prisoners at USDB must have hair no longer than two inches in length. But Manning argues that growing her hair is part of embracing her identity as a woman, which is part of her treatment for gender dysphoria.
In September 2014, Manning’s lawyers filed a lawsuit against then-Secretary of Defense Chuck Hagel and officials from the Department of Defense and the U.S. Army for denying her treatment for her gender dysphoria. As a result of the lawsuit, the government has since allowed Manning to receive hormone therapy, speech therapy and cosmetics, but has refused to concede on the issue of hair length.
“With respect to the alleged interest in military discipline, since Plaintiff is not challenging the existence of grooming standards but merely the application to her of male as opposed to female standards, it is not clear how her case implicates military discipline at all,” the ACLU writes in its brief. “Defendants’ arguments are premised on the idea that treating her as female and applying the military rules applied to female prisoners and servicemembers would disrupt military discipline. But they have not explained how treating a transgender female prisoner as the woman she is would do that.
“At most, Defendants have established that there exist important governmental interests in military discipline and security. Plaintiff does not contest that. But that does not end the inquiry,” the brief continues. “Defendants must prove, not simply assert, that the means chosen to advance that interest — here treating Plaintiff as male for purposes of the hair length and grooming standards and refusing to make a medical exception – substantially advances that interest.”
“Chelsea continues to await constitutionally adequate treatment over five years after her arrest,” Chase Strangio, Manning’s attorney from the ACLU’s Lesbian, Gay, Bisexual and Transgender Project, said in a statement. “Though the government attempts to diminish and complicate the issues, our brief makes the straightforward case that the government cannot deny her treatment or her right to equal protection solely because she is transgender and seeking treatment for her gender dysphoria.”